Wednesday, June 15, 2005
At present such actions as protest flag burnings are protected, under the Supreme Court's decision in Texas v. Johnson (491 US 397 - state law) and US v. Eichman (496 US 310) , which held that the Flag Protection Act of 1989 (federal law) violated the First Amendment's protection of free speech. In Eichman the court addressed the request that the Texas decision be revisited in light of a "national concensus" favoring such a ban:
Even assuming such a consensus exists, any suggestion that the Government's interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment.
The decision closed with this:
We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets, see Terminiello v. Chicago, 337 U.S. 1 (1949), vulgar repudiations of theThe dissent in Eichman includes this argument:
draft, see Cohen v. California, 403 U.S. 15 (1971), and scurrilous caricatures, see Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). "If there is a bedrock
principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Johnson, supra. Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.
Contrary to the position taken by counsel for the flag burners in Texas v. Johnson, 491 U.S. 397 (1989), it is now conceded that the Federal Government has a legitimate interest in protecting the symbolic value of the American flag. Obviously that value cannot be measured, or even described, with any precision. It has at least these two components: in times of national crisis, it inspires and motivates the average citizen to make personal sacrifices in order to achieve societal goals of overriding importance; at all times, it serves as a reminder [*320] of the paramount importance of pursuing the ideals that characterize our society.
But isn't one of those ideals the concept that a citizen's statements or actions that express political dissent are protected? The flag certainly is something around which the citizenry can be exhorted to rally, but we are also provided with the freedom to cry out against such rallying when we feel the call to arms is not for a valid or wise cause. It's because of this freedom that the flag can maintain its symbolic value. I often find myself quoting one of my favorite movies, The American President, in which President Andrew Shepard (played by Michael Douglas), has this to say:
America isn't easy. America is advanced citizenship. You've gotta want it bad, cause it's gonna put up a fight. It's gonna say, "You want free speech? Let's see you acknowledge a man whose words make your blood boil, who's standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours." You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then you can stand up and sing about the land of the free.
Want to stop people from burning or otherwise desecrating the flag? Make sure the government doesn't take actions that themselves violate "the ideals that characterize our society." If a protest is unfounded, then make your argument and convince people not to join it, instead of criminalizing the protester.